25 February 2015

FMLA’s Definition of “Spouse” Now Includes Same Sex Marriages

Today the United States Department of Labor (DOL) will publish a new regulation that amends the Family Medical Leave Act’s (FMLA) definition of “spouse” to include same-sex couples who were married in a state or country that legally recognizes same-sex marriage. The amended regulation will take effect on March 27, 2015.

This change is significant for employers located in states – such as Michigan – that do not currently recognize same sex marriage. Until today, the FMLA defined “spouse” in accordance with the law of the state in which the employee resided. Therefore, an employee residing in Michigan could not take FMLA leave to care for his or her same-sex spouse even if the employee had been legally married in another state.

Under the DOL’s new regulation, however, a “spouse” is defined according to the law of the state where the individual was married. This is sometimes referred to as the “place of celebration” rule. Under this rule, employees who were married in a state that recognizes same-sex marriage may take FMLA leave to care for a same-sex spouse regardless of where that employee lives. Therefore, the change to the definition of ‘spouse’ also means that an employee could take FMLA to care for the children of the employee’s same sex legal spouse and the same sex spouse of the employee’s parent.

As of February 25, 2015, 32 states and Washington D.C. allow or recognize same-sex marriages: Alaska, Arizona, California, Colorado, Connecticut, Delaware, Hawaii, Idaho, Illinois, Indiana, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Oklahoma, Oregon, Pennsylvania, Rhode Island, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin, and Wyoming. The legal status of same-sex marriages is currently unclear in nine other states – including Michigan – because of pending legal challenges.

In preparation for the new regulation’s March 27, 2015 enactment date, employers should consider taking the following steps:

  • Train all leave administrators and supervisors about the change in the rule. Ensure that all decision-makers and leave administrators understand that employees can take FMLA leave to care for same-sex spouses, as well as the children and parents of the spouse;
  • Modify your FMLA handbook policies and other documentation. To the extent that your FMLA policies, forms, or guidance defines “marriage” or “spouse” in a way that is contrary to the new regulation, these documents will require a re-draft; and
  • Identify employees who are currently missing work to care for a same-sex spouse, step-child, or step-parent. Although this time off work does not currently fall under the FMLA, it will as of March 27, 2015 so long as the employee meets the other FMLA eligibility requirements. Employers should explain the change in the law to those employees and provide them with the FMLA Notice of Eligibility and Rights & Responsibilities and the FMLA Designation Notice prior to designating time off work as FMLA leave.

If you have questions or would like more information, feel free to contact a member of Miller Johnson’s FMLA/ADA Solutions practice.